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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

European Court of Justice/Sweden: Invalidation of Data Retention Obligations

(Jan. 19, 2017) On December 21, 2016, the European Court of Justice (ECJ) delivered a judgment striking down Sweden’s Data Retention Act as inconsistent with provisions of the Charter of Fundamental Rights of the European Union. (Joined Cases C-203/15 & C-698/15, Tele 2, Sverige AB v Post-och Telestyrelsen and Secretary of State for the Home Department v. Watson, Brice, and Lewis (Dec. 21, 2016), CURIA.)

Fifteen EU Member States (including Sweden and the United Kingdom) as well as the European Commission submitted materials to the ECJ for consideration in the cases.  (Id.)  A number of Member States of the European Union have amended their data retention laws following the ECJ’s 2014 landmark decision Digital Rights Ireland (C-293/12 and C-594/12).  (The Data Retention Saga Continues: European Court of Justice and EU Member States Scrutinize National Data Retention Laws, JONES DAY (Aug. 11, 2016); Joined Cases C-293/12 & C-594/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Apr. 8, 2014), CURIA; Theresa Papademetriou, Court of Justice of the European Union: Data Retention Directive Held Invalid, GLOBAL LEGAL MONITOR (May 21, 2014).)

Background

In 2003, the Swedish Parliament adopted a Data Retention Act requiring Swedish Telecom and Internet providers to collect and retain metadata on the calls and other communications of its customers, including the time, location, and duration of the communications, for six months. (16a, 16d§§ Lagen om elektronisk kommunikation (LEK) (Datalagringslagen) [Data Retention Act] (Svensk författnignssamling [SFS] 2003:389), LAGEN.NU.) Even after the ECJ declared, in its decision on Digital Rights Ireland, that the Data Retention Directive 2006/24/EC infringed privacy rights, a Stockholm Administrative District Court upheld the country’s Data Retention Act, arguing that the Swedish law was more well-defined than the Directive had been.  (Elin Hofverberg, Sweden: Internet Service Provider Appeals Data Retention Obligation, GLOBAL LEGAL MONITOR (Nov. 7, 2014).) However, the Swedish Internet service provider Tele 2 stopped collecting data on its customers and appealed the district administrative court’s decision to the Sweden’s Administrative Court of Appeal.  (Id.; Administrative District Court Stockholm, Case No. 14891-14 (Oct. 13, 2014) (in Swedish) (on file with author).)

The Administrative Court of Appeal referred the case to the ECJ with the following questions:

  1. Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime … compatible with Article 15(1) of Directive 2002/58/EC, taking account of Articles 7 and 8 and Article 52(1) of the Charter? (ECJ ¶ 51.)
  2. [W]hether Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and Article 52(1) of the Charter, must be interpreted as precluding national legislation governing the protection and security of traffic and location data, and more particularly, the access of the competent national authorities to retained data, where that legislation does not restrict that access solely to the objective of fighting serious crime, where that access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. (Id. ¶ 114.)

European Court of Justice Findings

The ECJ Grand Chamber heard the joined cases C-203/15 and C-698/15 as part of a preliminary ruling request from the Administrative Court of Appeal in Stockholm and the Court of Appeal (England & Wales) (Civil Division). (Id. ¶ 1.)  The ECJ found that in addition to possibly violating articles 7 (privacy) and 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union, the Swedish law also raised questions regarding a possible violation of article 11 (freedom of expression) of the Charter. (Id. ¶ 92.)  In its December 21, 2016, judgment, the Court found that requiring data retention by service providers may only be allowed when it constitutes a ”necessary, appropriate and proportionate measure within a democratic society” and only when retained “for a limited period” and justified by the objectives listed in article 15 (1) of Directive 2002/58 on Privacy and electronic communications.  (Id. ¶ 95; Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (Directive on Privacy and Electronic Communications), EUR-LEX; Charter of Fundamental Rights of the European Union, 2012/C 326/02, 2012 OJ (C 326) 391, EUR-LEX.)

The ECJ further found that the information collected by Swedish service providers enabled intimate details to be concluded about a person’s “everyday habits, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” (id. ¶ 99) and could ultimately make the person affected “feel that [his/her] private [life is] the subject of constant surveillance” (id. ¶ 100).

The Court went on to argue that although the law does not directly adversely affect the content of communications (as it only recorded metadata), “the retention of traffic and location data could nonetheless have an effect on the use of means of electronic communication, and, consequently, on the exercise by the users thereof of their freedom of expression, guaranteed in Article 11 of the Fundamental Rights Charter.”  (Id. ¶ 101.)  Moreover, in answering the second question quoted above, regarding when data retention is permissible, the ECJ found that the data retained can only be accessed with the “objective of fighting serious crimes” (id. ¶ 115) or if “vital national security, defence or public security” is at stake (id. ¶¶ 119 & 125).  In addition, such access requires prior judiciary review, and the collected information is stored within the European Union.  (Id. ¶ 125.)

Finally, the ECJ concluded that the Charter of Fundamental Rights precluded the adoption and enforcement of such laws as the Swedish Data Retention Act as it “provide[d] for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.”  (Id. ¶ 134 (1).)  However, according to the ECJ, the EU Member States are still allowed to adopt laws that retain traffic and location data as long as the purpose of the legislation is to fight serious crimes, and all “retention of the data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary.”  (Id. ¶ 108.)  Such categories need to be defined based on objective evidence, according to the Court; for example, the identification of specified geographical areas that are at high risk of being breeding grounds for the preparation of serious crimes.  (Id. ¶ 111.)

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United Kingdom: Consultation on Additional Drone Regulations Proposed

(Jan. 18, 2017) The Government of the United Kingdom recently issued a consultation document that contains additional proposals for the use of unmanned aerial vehicles (UAVs), or drones.  Drone technology is of growing economic importance; it is estimated it will be worth £102 billion (about US$126 billion) by 2025.  The government wishes Britain to become “the global go-to place for scientists, innovators and tech investors, and the development of new technologies such as drones is key to that … we want to further drive forward progress in the UK drones industry by fostering the right supportive environment.”  (Department for Transport, Unlocking the UK’s High Tech Economy: Consultation on the Safe Use of Drones in the UK (Dec. 21, 2016) (Consultation), at 5, GOV.UK.) The consultation advocates creating a simpler legal framework for drone operators.  (Id.)

Proposals in the Consultation

Since 2014, the House of Lords has been considering whether legislation is needed to better regulate the recreational use of drones.  The House of Lords issued a report in which it noted that advances in technology and a decrease in the cost of drones has led to an inconsistent regulatory framework that currently distinguishes between the commercial and noncommercial use of drones.  This distinction presumed that noncommercial users had a pre-existing knowledge of aviation and the rules of the air; however, advances in technology mean that similar aircraft are being used by commercial and recreational users, but under different regulations.  (HOUSE OF LORDS, EU SELECT AFFAIRS COMMITTEE, 7TH REPORT OF SESSION 2014–15, CIVILIAN USE OF DRONES IN THE EU, 2014–15, HL 122, ¶ 40.)

The new proposals include mandatory registration of new drones, increased penalties for flying drones illegally near no-fly zones; new signage for no-fly zones at sensitive sites, such as airports and prisons; and the introduction of a new criminal offense of misusing a drone.  The proposals in the consultation also include making drones identifiable by electronic means so that the police can more easily determine the owner of any drone discovered breaking the law, introducing a commercial drone pilot license, requiring mandatory insurance for drone owners, and establishing a system of drone traffic management.  (Consultation, Part 3.)

Current Laws

Drones are currently covered primarily by the UK’s aviation laws, which are regulated by the Civil Aviation Authority (CAA).  Other areas of law that come into play, particularly if the drone has a camera mounted on it, are data protection, privacy, liability, insurance, export, and intellectual property laws, as well as the common-law torts of nuisance and trespass.  (Peter Lee, Some Thoughts on the Drone Sector…, DRONES AND THE LAW (Feb. 4, 2016).)

The UK’s current laws addressing drones are detailed in Clare Feikert, Regulation of Drones: United Kingdom, part of a Law Library of Congress multinational report, Regulation of Drones (Apr. 2016).

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Germany: Government Proposes Law to Reduce Gender Pay Gap

(Jan. 18, 2017) On January 11, 2017, the German government agreed on a draft act that aims to ensure equal pay for work of equal value for women and men in the same workplace. (Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Förderung der Transparenz von Entgeltstrukturen [Draft Act of the Federal Government, Draft Act to Promote Transparency in Pay Structures] (Jan. 11, 2017), Federal Ministry for Family Affairs, Senior Citizens, Women, and Youth website.)

Current German law forbids discrimination in pay on the basis of gender, among other categories. The draft act would provide the following measures to promote transparency in pay structures:

  • prohibition of direct or indirect pay discrimination based on gender and provision of a legal definition of “equal work or work of equal value” and other concepts in connection with “equal pay” (id. §§ 3, 4, & 7);
  • the legal right of an individual employee to request information on the company’s fixed basic gross salary and on one or two salary components, in companies with more than 200 workers (id. §§ 10 & 12);
  • enhanced rights of the Worker’s Council to enforce the employee’s right to information (id. §§ 13, 14, & 15);
  • encouragement of employers with more than 500 employees to put measures in place to regularly audit the pay structures to ensure equal pay (id. § 17); and
  • obligation of employers with more than 500 employees to provide regular updates on the status of measures to promote equality in general and wage equality between men and women or explain why there are no such measures in place, with publication of the reports as an attachment to the company’s management report (id. §§ 21 & 22 ¶ 4).

Next Procedural Steps 

The federal government forwarded the draft act to the Bundesrat for discussion. The Bundesrat, the constitutional body through which the German states participate in the legislative process, generally has six weeks to debate draft legislation.  After the six weeks have passed, the federal government will forward the draft act, along with the comments of the Bundesrat, to the German Bundestag (parliament) for discussion.  (Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 76 ¶ 2, GERMAN LAWS ONLINE (unofficial English translation).)

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Japan: Merchants to Be Required to Have IC Chip Readers for Credit Cards

(Jan. 18, 2017) An amendment to Japan’s Installment Sales Act (Act No. 159 of 1961) was promulgated on December 9, 2016. (Act to Amend the Installment Sales Act, Act No. 99 of 2016, KANPO Extra Edition No. 273 (Dec. 9, 2016), at 3, KANPO website (in Japanese).)  The amendment aims to enhance credit card security.  (Cabinet Decision on “Bill to Amend a Part of Installment Sales Act,” Ministry of Economy, Trade and Industry (METI) website (Oct. 18, 2016).)  The amendment will take effect by June 2018.  (Act No. 99 of 2016, Supp. Provisions, art. 1.)

Many provisions state that specific measures on tightening credit card security will be prescribed by METI ordinances.  Among these provisions, for example, one of the major amendments is that, in order to prevent unauthorized use of credit cards, retailers and retail service providers will have to take measures that will be specified by a METI Ordinance.  (Installment Sales Act, Act No. 159 of 1961, as amended by Act No. 99 of 2016, art. 37-17-15.)  The METI has stated that installation of IC chip readers will be mandatory.  (METI, supra.)  In Japan, only about 20% of credit card readers currently have IC chip readers. (Shops that Participate in Card Systems Obligated to Deal With IC Chips, Installment Sales Act to Be Amended, NIKKEI (May 26, 2016) (in Japanese).)

The amendment will also establish a registration system for credit card companies and credit card acquirers (the financial institutions that solicit merchants to accept credit cards and that offer services to those merchants connected to the use of the cards).  (Installment Sales Act, as amended by Act No. 99 of 2016, art. 35-17-2.)  The credit card companies will be obligated to check whether merchants can properly manage credit card information before allowing them to engage in credit card transactions and periodically thereafter.  (Id. art. 35-17-8.)

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Mongolia: New Mining Law Being Drafted

(Jan. 17, 2017) Mongolia’s Ministry of Mining and Heavy Industry is working on new legislation on mining. The Mining Law now being drafted would regulate all aspects of mine businesses, from their establishment to closure. (Mongolia Considers New Mining Law, NEWS.MN (Jan. 4, 2017).) It thus reportedly would cover a wider range of topics than the existing Minerals Law, which was passed on July 8, 2006, and effective as of August 26 of that year, and amended numerous times, including extensive revisions in 2014. That law focuses on regulating the licensing process and on financial accountability. (Id.; Minerals Legislation, Mineral Resources Authority of Mongolia website (click on separate links for 2006 law and 2014 amendment) (in Mongolian); Orgil Davaasuren, The Amendments of 2013, 2014 and 2015 to the Law of Mongolia on Minerals (2006), Ashid Advocates LLP website (2015).)

Mongolia’s economy is heavily dependent on mining industries. According to a World Bank report, as of the middle of 2016, 20% of the Gross Domestic Product was from the mining sector, double the proportion of ten years ago. (Mongolia: Overview, The World Bank website  (last updated Aug. 26, 2016).)

2013-2014 Amendments of the Minerals Law

The amendments enacted on October 3, 2013, were designed part to make the Minerals Law consistent with provisions of the Investment Law, which was itself adopted on that day. Those provisions covered the royalties due to investors, including investors involved in the mining sector of the economy.(Davaasuren, supra; Mongolian Law on Investment (unofficial translation) (Oct. 3, 2013), Embassy of Mongolia in Poland website.)

On January 24, 2014, the Mongolian Parliament adopted additional amendments to the Minerals Law specifying that if a mining license holder sells extracted gold to the Bank of Mongolia or a bank authorized by that institution, the royalty rate will be 2.5%, a reduction from prior rates. (Davaasuren, supra.) Furthermore, on May 15, 2014, the Mongolian Parliament approved amendments that state that mining operations, including exploration, must be preceded by a survey done by an organization with ethnographic, paleontological, and archaeological expertise, in order to ensure that there is no harm to Mongolia’s cultural heritage from the mining operations and that Mongolian law is consistent with the ideas expressed in the 1972 World Cultural and Natural Heritage Convention. (Id.) Mongolia has been a party to that Convention since February 2, 1990. (Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted Nov. 16, 1972), United Nations Educational, Scientific and Cultural Organisation [UNESCO] website; States Parties Ratification Status (as of June 9, 2016), UNESCO website.)

Major Amendments of July 2014 

In a report based on the draft of July 1, 2014, amendments to the Minerals Law, which were subsequently adopted, and on comments from the Vice Minister of Mining, Erdenebulgan Oyun, Michael Kohn of Bloomberg.com noted that the proportion of Mongolia that would be available to mining operations and exploration was increased from about 8% to 20% and that a 2010 ban on issuance of new mining licenses would be removed. In addition, companies would be able to undertake exploratory operations for 12 years, rather than being limited to nine years as was previously the case. (Michael Kohn, Mongolia Passes Mining Changes to Boost Exploration, BLOOMBERG (July 2, 2014).)   In addition, the revision of the Law created two administrative bodies, a National Geological Survey and a Policy Council concerned with legal changes that affect mining.

The amendments were described in the press as designed to both stimulate the economy and restore investor confidence. (Id; Cecilia Jamasmie, Mongolia Approves Major Overhaul to Mining Law, MINING.COM (July 2, 2014).) Other changes introduced include:

  • providing that a separate law will govern exploration and mining of some common minerals;
  • requiring a license for exploration and collection of non-ferrous metals and precious stones, similar to the license needed for other common minerals;
  • expanding the powers of Mongolian authorities to approve the form of contracts for mining license holders, covering environmental protection, mineral extraction, infrastructure development, and job creation. The government will now approve, and publicly announce, in which areas exploration is permitted, and the Ministry of Mining will approve some regulations and procedural rules previously approved by the Mineral Resources Authority;
  • requiring license holders to give priority to Mongolian businesses in procuring goods or selling extracted, concentrated, or partially processed products;
  • compensating license holders, who have had their licensed areas confiscated by the state as “special purpose zones,” within one year of the confiscation decision and allowing those areas to revert to the license holders if no longer needed as special purpose zones;
  • reducing the size of the area covered by a single exploration license from 400,000 to 150,000 hectares (from about 988,400 to 370,660 acres);
  • requiring license holders to do feasibility studies that include details on proposed transportation of the mined products, infrastructure development, and funding needed for mine restoration or closing;
  • basing the amounts of fines for violations of the Minerals Law on the minimum monthly wage; and
  • obligating applicants for exploration and mining licenses to have all documentation reviewed by accredited technical experts. (Davaasuren, supra.)

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